United States v. $65

UNITED STATES OF AMERICA, Plaintiff,v.$65, 020 UNITED STATES CURRENCY, 2008 HONDA ACCORD VIN JHMCP26738C002908, Defendant-in-rem. and JULIO CESAR FIGUEROA-RIVERA, Claimant.

MEMORANDUM OPINION AND ORDER

THIS
MATTER is before the Court on the United States' Motion
to Strike Julio Cesar Figueroa-Rivera's Verified Claim
(Doc. 22), filed February 21, 2018. Pursuant to 28
U.S.C. § 636(c) and Fed.R.Civ.P. 73(b), the parties have
consented to me serving as the presiding judge and entering
final judgment. See Docs. 13-15. Having considered
the record, submissions of counsel, and the relevant law, the
Court finds that the motion to strike is not well-taken and
will be denied.

I.
BACKGROUND

On
August 30, 2017, the United States filed a Verified Complaint
for Forfeiture In Rem, seeking forfeiture of $65,
020.00 in United States Currency, as well as a 2008 Honda
Accord, VIN JHMCP26738C002908, pursuant to 21 U.S.C. §
881(a)(6), (4). Doc. 1 at 1. The allegations giving
rise to the forfeiture action are set forth in the Verified
Complaint. See id. On March 23, 2016, Bernalillo
County Sheriff's Office (“BSCO”) Deputy
Leonard Armijo conducted a traffic stop of the subject Honda
Accord, which was traveling on Interstate 40, for an unsafe
lane change and improper display of a temporary registration
plate. Id. at ¶ 7. The driver and sole occupant
of the Honda Accord was Julio Cesar Figueroa-Rivera
(“Claimant”). Id. Upon visual inspection
of the vehicle's exterior, Deputy Armijo noticed that the
exhaust system was hanging well below the normal limits.
Id. at ¶ 10. After Figueroa-Rivera declined to
consent to a search of the vehicle, BCSO Deputy Pat Rael and
his certified drug detection dog conducted an open-air sniff,
and the dog alerted positively for the odor of illegal drugs
near the rear of the vehicle. Id. at ¶ 12.
Deputy Armijo inspected the rear underside of the vehicle and
discovered non-factory parts, tooling on the bolts, freshly
cut metal, and fresh paint. Id. at ¶ 13. A more
thorough inspection of the vehicle at a public works facility
revealed two non-factory compartments containing six
cellophane-wrapped and rubber-banded bundles containing $65,
020.00. Id. at ¶ 14.

Following
commencement of this forfeiture action, Claimant filed a
Verified Claim to Property on October 24, 2017, asserting an
ownership interest only in the currency identified in the
complaint, not the car. Doc. 7. More specifically,
Claimant stated that he is “the owner of sixty-five
thousand and twenty dollars ($65, 020.00) in U.S.
Currency” and that he “was in lawful possession
of all of the U.S. Currency at the time of the
seizure.” Id. at 1. Additionally, on November
14, 2017, Claimant filed an Answer to Plaintiff's
Verified Complaint for Forfeiture In Rem, in which
he responded to a number of the government's assertions
by invoking the “right provided under the state and
federal constitutions to remain silent.” Doc.
9.

As
permitted by Supplemental Rule G(6)(a) of the Supplemental
Rules for Admiralty or Maritime Claims and Asset Forfeiture
Actions, [1] the United States served special
interrogatories on Claimant in order to gather information
bearing on his standing to bring a claim to the currency
seized from the Honda Accord. Doc. 22 at 6. In
response to each of the special interrogatories, Claimant
Figueroa-Rivera asserted his Fifth Amendment right not to
incriminate himself. See Doc. 22-1. Thereafter, the
United States moved to strike Claimant's verified claim
and answer. Doc. 22.

II.
ANALYSIS

Supplemental
Rule G provides a mechanism for the government to move to
strike a claim or answer in a civil forfeiture case.
Specifically, Supplemental Rule G(8)(c) authorizes the filing
of such a motion at any time before trial for one of the
following reasons: 1) failure to comply with Supplemental
Rule G(5), a provision that requires the timely filing of a
proper verified claim; 2) failure to comply with Supplemental
Rule G(6), a provision that requires a claimant to answer or
object to special interrogatories from the United States; or
3) because the claimant lacks standing. See Supp. R.
G(8)(c)(i). A motion to strike “may be presented as a
motion for judgment on the pleadings or as a motion to
determine after a hearing or by summary judgment whether the
claimant can carry the burden of establishing standing by a
preponderance of the evidence.” See Supp. R.
G(8)(c)(ii)(B).

Under
Tenth Circuit law, a claimant who has “asserted an
ownership interest in the res at issue and has provided some
evidence tending to support the existence of that ownership
interest, . . . has standing to challenge the
forfeiture.” United States v. $148, 840.00 in
United States Currency, 521 F.3d 1268, 1276 (10th Cir.
2008). Moreover, the unequivocal claim of ownership over the
res coupled with undisputed evidence that the res was taken
from the claimant's possession and control are together
sufficient to confer constitutional standing. See
Id. at 1276-78.

Here,
the United States' motion to strike is not presented as
either a motion for judgment on the pleadings or as a motion
for summary judgment. Instead, it asks the Court to exercise
its discretion to strike Claimant's verified claim based
upon his refusal to answer special interrogatories in favor
of invoking his Fifth Amendment privilege. Clarifying that
“standing is not the issue before the Court, ”
the United States suggests that Claimant's assertion of
his Fifth Amendment privilege justifies the striking of his
claim and answer. Doc. 22 at 2.

Supplemental
Rule G(8) does not expressly permit the striking of a
verified claim and answer under the circumstances here; the
United States seems to acknowledge as much in its reply
brief. Doc. 25 at 4 (“The Court is not
considering a motion under Supplemental Rule G(8).”).
Although Supplemental Rule G(8) sanctions striking a claim
when a claimant fails to answer or object to special
interrogatories pursuant to Supplemental Rule G(6), Claimant
was technically compliant with Supplemental Rule G(6). That
rule merely requires that a claimant's “[a]nswers
or objections to [special interrogatories] be served within
21 days after the interrogatories are served.” Supp. R.
G(6)(b). Claimant provided his Fifth-Amendment assertions in
response to the special interrogatories on November 29, 2017.
See Doc. 22-1. In the Court's view, Claimant
thereby provided timely objections to United States'
special interrogatories, in compliance with Supplemental Rule
G(6). Given such compliance, the United States cannot rest
its motion to strike upon procedural rules. It relies,
instead, upon case law, or perhaps more accurately on
dicta, from the Tenth Circuit, as well as persuasive
authority from other courts.

First,
the United States suggests that its motion comports with the
“guidance” provided by the Tenth Circuit in
United States v. $148, 840.00, 521 F.3d 1268 (10th
Cir. 2008) for addressing a claimant's use of the Fifth
Amendment as an “offensive litigation tool” in
civil forfeiture cases. See Doc. 25 at 4. Although
the government asserts that the factual posture of this case
is “virtually identical” to that in United
States v. $148, 840.00, the primary issue there was
whether the claimant had advanced sufficient jurisdictional
facts to support his constitutional standing. 521
F.3d at 1270. The Tenth Circuit examined the determination by
Honorable Martha Vazquez of this District that the claimant
lacked constitutional standing to challenge the forfeiture of
currency discovered in a cooler in the trunk of the vehicle
he was driving. Id. at 1270-71. The claimant had
filed a verified claim opposing forfeiture, as well as an
answer to the government's complaint, both of which
asserted that he was the owner of the currency. Id.
at 1272. At his deposition, the claimant testified that he
was the owner of the currency seized; however, he invoked his
Fifth Amendment privilege in response to more specific
questions about the currency and its source. Id.

Moving
to strike his claim and answer, the government argued that
because the claimant had invoked his Fifth Amendment
privilege in response to questions about his possession of
the currency, he “should be barred from contesting the
forfeiture action on the ground that he failed to carry his
burden of establishing constitutional standing.”
Id. While Judge Vazquez agreed, the Tenth Circuit
did not. The Tenth Circuit held that because the claimant
asserted ownership of the currency, as opposed to possession
on behalf of another, “it was of no moment that he
invoked his privilege against self-incrimination at his
deposition when asked to explain his interest in
detail.” Id. at 1275. The court clarified that
it was enough, for purposes of constitutional standing at the
summary judgment stage, that he claimed to own the money
taken from his possession. Id. at 1275.

Although
there are factual similarities, as Claimant here
also asserted ownership of money seized from a
vehicle he was driving, the court's holding in United
States v. $148, 840.00 does not resolve the issue
presented in the government's Motion to Strike. Even so,
the Tenth Circuit does offer some commentary bearing on the
issues currently before the Court. It projected that it would
have been a “different case if the district court had
exercised its discretion to strike [the] claim of ownership
to the currency in light of [the claimant's] repeated
invocations of the Fifth Amendment privilege.”
Id. at 1277. It explained:

It is well established that in a civil case a district court
may strike conclusory testimony if the witness asserts the
Fifth Amendment privilege to avoid answering relevant
questions, yet freely responds to questions that are
advantageous to his cause. This doctrine exists to prevent a
party from converting the Fifth Amendment privilege from its
...

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